Vernose v. Zoller

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1453-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 22, 2010

Before Judges Reisner, Yannotti and Chambers.

In this matrimonial action, defendant wife appeals and plaintiff husband cross-appeals from portions of a final judgment of divorce entered November 16, 2007. We affirm.

The facts are discussed in detail in the trial judge's opinion and need not be repeated here. Following a very lengthy trial, Judge Roe issued a 105-page written opinion, making factual findings including detailed credibility determinations. In her appeal, defendant argues that the trial court erred in failing to award her equitable distribution of the marital residence, which plaintiff had bought with his previous spouse years before he met defendant. She also claims entitlement to a share of certain assets that plaintiff acquired during the parties' four-year period of pre-marital cohabitation. She contends the court erred in dismissing her claims of entitlement to equitable remedies. She argues that the judge improperly precluded her from calling several witnesses, based on the judge's conclusion that subpoenaing those individuals was an attempted "fishing expedition" after the close of discovery.

Defendant challenges the award to her of $1500 per week in alimony, $3000 per month in child support plus $2500 per month in private school tuition, as inadequate.*fn1 She contends that the court should not have allowed plaintiff to obtain a decreasing term life insurance policy to secure the alimony award. Defendant, who changed attorneys four times during the divorce proceedings thus causing significant delays, also appeals the court's order that she pay $10,000 for the cost of an economic mediator and $9164 in counsel fees to plaintiff.

Plaintiff cross-appeals, claiming that the trial court should not have awarded permanent alimony based on the parties' four-year period of cohabitation followed by eight years of marriage. He also contends the court gave defendant an excessive alimony award, and erred in awarding defendant sole ownership of a $315,000 Florida condominium that the parties purchased while they were cohabiting. Plaintiff further argues that the trial court should have ordered defendant to pay a larger portion of the more than $350,000 in counsel fees and other litigation expenses that he incurred during the divorce litigation.

We have reviewed the entire record, including reading the massive trial transcript and the judge's thorough and well-reasoned opinion dated September 14, 2007. Based on that review, we find no basis to disturb the judge's decision to credit the testimony of plaintiff and his expert accountant, and her decision that defendant and her economic expert were not credible.*fn2 The support award and the overall distribution of assets were fair to both parties and consistent with applicable law. The judge's decision is supported by substantial credible evidence, and warrants our traditional deference to the expertise of the Family Part. See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

We conclude that the parties' respective appellate contentions are without merit, R. 2:11-3(e)(1)(E), and warrant no discussion except as briefly addressed below.*fn3 We affirm substantially for the reasons stated in the trial judge's comprehensive opinion. We add the following comments.

Defendant's reliance on McGee v. McGee, 277 N.J. Super. 1 (App. Div. 1994), is misplaced. McGee does not state a bright-line rule that in every case where a couple cohabits before marriage, all assets acquired during cohabitation must be treated as marital assets. McGee turned in large part on the pervasive sense of injustice conveyed by the facts of that case. Id. at 10.

In McGee, prior to the marriage, the plaintiff bought the defendant's house from her at a substantial discount, because it was about to be sold at a sheriff's sale. Id. at 3-4. He proceeded to strip the remaining equity by taking out loans, and then reconveyed the house to himself and the defendant prior to their marriage. Id. at 7. By the time the couple divorced, the house was their only asset of value, and Mrs. McGee was fifty-seven and unemployable. Nonetheless, the trial court denied her permanent alimony and a fair share of the house's original value. We considered these factors: that when Dr. McGee agreed to take over the house and save it from the sheriff's sale, Mrs. McGee immediately lost at least $87,000 in equity and Dr. McGee received a windfall in that amount when the house was transferred to him; that Dr. McGee systematically bled the house of value prior to marrying Mrs. McGee so that practically no equity was left when the house was deeded back to both of them, and that from 1982 onward, Dr. McGee paid over a quarter of a million dollars to support his previous wife and two children which funds were apparently part of the "general operating" costs of himself and Mrs. McGee. In addition, during the years of his relationship with Mrs. McGee, while Dr. McGee's annual income doubled, she labored at home on their behalf. She is now fifty-seven, unskilled, unemployed and very likely unemployable.

[Id. at 11 (footnote omitted).]

Against that factual backdrop, we concluded that the wife was entitled to more in the way of equitable distribution ...

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